Kevin Johnson sees the First Step Act as his ticket out of prison, and he might be right.
The criminal justice reform law offers several pathways to freedom in drug cases like his. But Congress didn’t make the process easy. Lawmakers required defendants like Johnson to represent themselves.
His story illustrates the frustrations of wading through a thicket of legal red tape that could defeat even practiced attorneys.
Editor’s Note: Name, locations and other details have been changed to protect the privacy of an inmate with a pending motion for release from prison.
The First Step Act of 2018 gives judges the power to adjust certain federal prison terms. Its purpose, according to Judge Anita B. Brody of the Eastern District of Pennsylvania, is to “unwind decades of mass incarceration.”
Two provisions are particularly useful for inmate-lawyers like Johnson.
Section 404 authorizes judges to reduce crack distribution sentences imposed before 2010, when the law treated every gram of crack as equivalent to 100 grams of powder cocaine.
Section 603 gives judges the power to grant inmate motions for sentence reductions for extraordinary and compelling reasons, including compassionate release during the pandemic.
This newfound judicial power breaks with decades of sentencing law and tradition, according to law professor Sarah French Russell. Prior to the First Step Act, judges had little power to review and correct unconscionably harsh prison terms. Now they can take a second look at old sentences and make the changes that justice requires.
But while Congress gave judges new power, legislators did not make resentencing automatic.
Today, the U.S. Bureau of Prisons can petition for resentencing—something that rarely happens—or inmates like Johnson can file a motion with the court. As The Crime Report recently documented, Families Against Mandatory Minimums is helping with some of these motions, and compassionate releases are rising under the First Step Act.
But many inmates are still struggling with the process.
Johnson is one such example. Because he sold marijuana and not crack, section 603 is the viable path to his release. It was the last provision he thought to try.
Prison Lawyering Six Years Later
In the summer of 2014, Johnson was pulled over for a traffic offense in Rutherford County, Tennessee. Officers found marijuana in his car. Back in his hotel room, Johnson had a gun. A year later, he pled guilty to one marijuana distribution charge and two charges related to possession of the firearm.
He had prior convictions for marijuana distribution and gun possession. Over the objections of his court-appointed counsel, the judge sentenced Johnson to 294 months’ imprisonment, including 60 months for the marijuana and 234 months for the hotel gun.
In January 2020, Johnson challenged his sentence under Rehaif v. United States. In Rehaif, the Supreme Court held that in certain prosecutions, the Government must prove that the defendant knew that the firearm possession was illegal. Since Johnson has twice pled guilty to illegally possessing a weapon as a felon, Rehaif is not the clearest route to his release.
The court has yet to respond to Johnson’s Rehaif motion.
A few months after filing the Rehaif motion, Johnson wrote a letter to the court asking for release under section 401 of the First Step Act. Section 401 limits and reduces the mandatory minimum penalties for recidivists like Johnson. But the section largely applies prospectively to post-2018 cases and is of questionable application to the facts of Johnson’s case.
Last summer, Johnson emailed me for help with his section 401 challenge after reading that I study section 404 of the First Step Act. I corresponded with his court-appointed attorney and several public defenders. One suggested that Johnson file for release for “extraordinary and compelling reasons” due to the pandemic.
I conveyed this to Johnson and requested three pieces of information: his health conditions, his rehabilitation efforts, and his prison discipline history. These facts can be the key to a sentence reduction for extraordinary and compelling reasons.
“Extraordinary and Compelling”
Sentence reductions are far from a sure thing, and extraordinary and compelling reasons reductions, governed by 18 U.S.C. § 3582(c)(1)(A), require defendants to clear several legal hurdles.
Typically, a defendant has to serve a significant proportion of the original sentence and exhaust the Bureau of Prisons’ internal request process before a court will consider a section 3582 motion.
Then, the court must find that the defendant is not a danger to another person or the community as required by 18 U.S.C. § 3142(g).
Following that, the court must determine that extraordinary and compelling reasons warrant a sentence reduction under 18 U.S.C. § 3582(c)(1)(A).
In the third step, the court must consider the sentencing factors enumerated in 18 U.S.C. § 3553, including the duty to “impose a sentence sufficient, but not greater than necessary.”
Recently, courts across the country, including in the Southeast and Midwest, have treated COVID-19 as a compelling factor in these cases. But these courts also consider factors such as the defendant’s rehabilitation efforts and post-release support system.
Johnson’s Compassionate Release Case
In mid-August, Johnson sent me his answers. He is a middle-aged Black man with obesity, diabetes, asthma, hypertension, severe allergies, and other ailments. He has attended drug treatment, goal setting, life planning, and other programs. He has no disciplinary infractions.
Independently, I researched Johnson’s facility. It has more than 30 confirmed COVID-19 cases and allegedly lackluster hygienic practices.
I told Johnson that he might be a candidate for compassionate release during the pandemic. I asked him why he had not pursued that route.
“I was told that you must have served half your sentence,” he explained.
Johnson’s notion of the incarceration time requirement is well-founded. As Prof. Russell details, inmates were required to serve significant proportions of their sentences––from 15 years to 85 percent–under the 2017 Model Penal Code for sentencing, state resentencing laws, and the old federal parole system.
And a defendant’s time into a sentence is still a relevant factor in First Step Act cases, particularly during the § 3553 sufficiency-of-sentence analysis. But the First Step Act and other laws give judges the authority to deviate from historic time served and process exhaustion requirements.
Since the onset of the pandemic this spring, however, judges have been waiving those requirements.
Judge Karon Bowdre of the Northern District of Alabama granted the emergency release of Pierre Brown, who tested positive for COVID-19 in prison. Brown had served less than one-quarter of his sentence for use of a firearm in connection with drug trafficking, but he had no disciplinary infractions or violent criminal history.
Judge Bowdre granted Brown’s release for a variety of reasons, including the inadequacy of medical treatment in the multi-county area surrounding the prison.
Judges in her circuit and others have waived the prison process exhaustion requirement on account of the pandemic, including for inmates who have yet to contract COVID-19.
These rulings are favorable to Johnson. But as an inmate with limited legal information, he was not aware of the cases. Of course, public defenders know these developments. And a court might eventually appoint a skilled criminal defense attorney to represent Mr. Johnson. But Johnson must initiate the section 603 request on his own. He plans to do so.
In mid-August, Johnson asked the prison to grant him compassionate release.
He filed a form 8. His counselor quickly denied it and gave him a form 9. Johnson estimated that the rest of the process would play out in a week or so. Weeks later, he reported that his counselor had been wrong. A regular request had to proceed a form 8.
So, Johnson started the process again. After that, he stopped responding to my emails.
Each day, I check Johnson’s court docket. There’s been no ruling on the Rehaif motion and no new motion for a section 603 release.
For the time being, Johnson is underrepresented.
Sarah E. Ryan is a practicing attorney and Associate Professor of Practice at Wesleyan University. She welcomes comments from readers.